United States v. Gonzales-Vasquez

United States Court of Appeals
For the First Circuit

No. 98-2108

UNITED STATES,

Appellee,

v.

WALDEMAR GONZALEZ-VAZQUEZ,

Defendant, Appellant.

No. 98-2109

UNITED STATES,

Appellee,

v.

HECTOR HERNANDEZ-NEGRON,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF PUERTO RICO

[Hon. Héctor M. Laffitte, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lipez, Circuit Judge.
 Lydia Lizarribar-Masini for appellant González-Vázquez.
Mauricio Hernández Arroyo for appellant Hernández-Negrón.
Antonio A. Bazán, Assistant United States Attorney, with
whom Guillermo Gil, United States Attorney, Jorge E. Vega-
Pacheco, Assistant United States Attorney, Chief, Criminal
Division, and Camille Vélez-Rivé, Assistant United States
Attorney, were on brief, for the United States.

July 18, 2000
 LIPEZ, Circuit Judge. Hector Hernández-Negrón and

Waldemar González-Vázquez appeal from their convictions

following a trial for conspiracy to distribute controlled

substances and aiding and abetting the distribution of

controlled substances within one thousand feet of a school.

Hernández claims that he received ineffective assistance of

counsel when his trial attorney failed to accept a plea bargain

as instructed, and that the government then violated his

constitutional rights by withdrawing the original plea offer and

offering a new "package deal" plea bargain that Hernández could

only accept if his two remaining co-defendants also pled guilty.

Hernández also argues that the district court misapplied

U.S.S.G. § 3B1.1 in finding him to be a "manager or supervisor"

of the criminal activity. González challenges the sufficiency

of the evidence, arguing that it was based solely on testimony

from the government's confidential informant. We reject these

arguments (as well as several arguments concerning evidentiary

errors) and affirm the convictions and sentence of Hernández and

the convictions of González.

I. Background

We recite the facts in the light most favorable to the

jury's verdict, consistent with record support. See United

States v. Hughes, 211 F.3d 676, 679 (1st Cir. 2000). In January

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1995, FBI Agent Michael Anderson learned that an individual

named Angel González-Ortiz, a.k.a. "Pichi," headed a gang that

distributed illegal drugs at the Luis Palés Matos housing

project in Guayama, Puerto Rico. The distribution point was

within 1000 feet of the Palés Matos Public School. Anderson

opened an investigation, assisted by Agent José Tirado, a Puerto

Rico Police officer who had performed some initial investigation

of the drug ring. Anderson met with a confidential informant

("CI"), Ramonita Massó-Nieves, who had assisted Agent Tirado in

his initial investigation. To corroborate the information

provided by Massó, Anderson set up two video surveillance

cameras at the drug point, recording numerous drug deals.

In February 1996 a Grand Jury returned a two-count

indictment against twenty-two individuals, charging a conspiracy

to distribute controlled substances in violation of 21 U.S.C

§§ 841(a)(1) & 846 and aiding and abetting the distribution of

controlled substances within 1,000 feet of a school in violation

of 21 U.S.C. §§ 841(a)(1) & 860 and 18 U.S.C. § 2. Shortly

after the indictments, the government offered plea bargains to

all of the co-defendants. Nineteen of the twenty-two co-

defendants accepted a plea bargain; Hernández, González, and

Louis Bonano-Serrano went to trial.

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 The jury trial lasted seven days. Through surveillance

videotapes, the jury saw drug transactions involving many of the

individuals who had pled guilty. Hernández, González, and

Bonano, however, did not appear in these videos. The government

attempted to link the defendants to the conspiracy through the

testimony of Massó and Agent Tirado. Massó testified that, from

her experience working at the drug point, she knew that

Hernández, González, and Bonano were the "guilterro" or

"triggermen" for Pichi, insuring that the kingpin and his

interests were protected. She further testified that González

had provided drugs to the distribution point and that Hernández

was second in command, after Pichi himself. She also testified

that on one occasion Hernández had used her apartment to package

drugs, and that she called Agent Tirado to inform him. Agent

Tirado confirmed this, testifying that upon arriving at Massó's

apartment, he found Hernández and two others sitting around a

table packaging a powder that a field test indicated was

cocaine. A chemist testified that later laboratory tests also

indicated that the substance was cocaine. Tirado also testified

that when he stopped González for a traffic violation he found

a bag containing drug packaging paraphernalia.

González and Bonano did not offer defense witnesses.

Hernández offered one witness: a co-conspirator who had pled

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guilty, and who testified that Hernández had been with him when

Agent Tirado came to Massó's apartment and found them packaging

drugs. The jury found Hernández and González guilty on both

counts. Bonano was acquitted. Hernández was sentenced to 450

months and González was sentenced to 360 months.

We evaluate Hernández's claims first, turn then to the

issues raised by González, and finally address an issue raised

by both appellants.

II. Hernández

A. The Plea Bargain

Hernández raises two arguments related to his

unsuccessful efforts to obtain a plea agreement from the

government. Like all of the twenty-two original co-defendants,

Hernández was offered a plea agreement after he was indicted in

1996. Nineteen of the co-defendants accepted the plea bargain

and were sentenced to between eighteen and forty-six months.

Hernández, however, deferred a decision on the plea offer while

preparing a motion to dismiss. After that motion was denied,

Hernández moved to compel the government to honor the initial

plea agreement. The government responded that there had been no

agreement. Rather, there had only been an offer that Hernández

had not accepted and that was now withdrawn. The government

further stated that it had advised Hernández that "trial

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preparation in this case would be the same against one or

against any of the three co-defendants."

1. Ineffective Assistance of Counsel

Hernández argues that he received ineffective

assistance of counsel because his trial counsel mishandled the

plea bargaining process by grossly underestimating Hernández's

potential sentence if the case were taken to trial, having

stated that Hernández could face a maximum of a ten year prison

term when in reality he faced a life sentence (and in fact

received thirty-seven and a half years). Additionally,

Hernández asserts that his trial counsel failed to accept the

plea offer as instructed, allowing the offer to lapse.

Hernández asserts that he went so far as to call his sisters in

the United States to enlist their help in bypassing his attorney

and communicating to the government that he wanted to accept the

plea bargain.

If true, Hernández's claims would present a serious

ineffective assistance question. See Boria v. Keane, 99 F.3d

492, 496 (1st Cir. 1996) ("A defense lawyer in a criminal case

has the duty to advise his client fully on whether a particular

plea to a charge appears to be desirable."); id. at 496-97 ("The

decision whether to plead guilty or contest a criminal charge .

. . must ultimately be left to the client's wishes."). However,

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"[w]e have held with a regularity bordering on the monotonous

that fact-specific claims of ineffective assistance cannot make

their debut on direct review of criminal convictions, but,

rather, must originally be presented to, and acted upon by, the

trial court." United States v. Berríos, 132 F.3d 834, 841 (1st

Cir. 1998) (quoting United States v. Mala, 7 F.3d 1058, 1062-63

(1st Cir. 1993)); see also United States v. McGill, 952 F.2d 16,

19 (1st Cir. 1991); United States v. Hunnewell, 891 F.2d 955,

956 (1st Cir. 1989); United States v. Costa, 890 F.2d 480,

482-83 (1st Cir. 1989).

While there is an exception to this bar in cases "where

the critical facts are not genuinely in dispute and the record

is sufficiently developed to allow reasoned consideration of the

ineffective assistance claim," United States v. Soldevila-López,

17 F.3d 480, 485 (1st Cir. 1994), Hernández's claims require the

resolution of factual disputes. We thus follow our usual

practice of dismissing this portion of the appeal without

prejudice to Hernández raising the ineffective assistance claim

in a 28 U.S.C. § 2255 petition. See id.

We note, though, that this seems to be one of the "rare

section 2255 cases in which the appointment of counsel [would

be] warranted." Mala, 7 F.3d at 1064. As in Mala, the

allegation of ineffectiveness is serious and the record provides

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some support for the defendant's claim. Under the initial plea

agreement that Hernández's trial counsel allegedly refused to

accept, Hernández would have likely received forty-six months,

given a reduction for acceptance of responsibility and the

government's willingness to drop the aiding and abetting count

and stipulate that Hernández was only responsible for a fraction

of the drugs. Both at the sentencing hearing and in an

affidavit filed on appeal, Hernández stated that he had

instructed his trial attorney to accept the plea bargain because

it was much less severe than the twenty years he was serving on

Puerto Rico charges relating to his involvement in the

conspiracy.1 After trial, Hernández received a sentence of

thirty-seven and half years--almost ten times the sentence he

would have likely received pursuant to the proposed plea

agreement. Moreover, the court ruled that the federal sentence

could not be served concurrently with the related twenty year

Puerto Rico sentence because the local courts were "too

lenient." We therefore "direct the district court, if appellant

petitions for section 2255 relief and demonstrates continued

1Three of Hernández's relatives have also filed affidavits
stating that Hernández telephoned two of his sisters (who lived
in Ohio) to enlist their help in bypassing his attorney and
telling the government directly that he wanted to accept the
offer.

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financial eligibility, to appoint counsel for him under 18

U.S.C. § 3006A(a)(2)(B)." Id.

2. The "Package Deal" Objection

Hernández argues that the government violated his

constitutional rights by withdrawing the original plea offer and

replacing it with a "package deal" plea that Hernández could

only accept if his two remaining co-defendants also pled guilty.

Because his co-defendants wanted a jury trial, Hernández says he

was unable to accept the agreement and was thus "forced" to go

to trial.

Hernández's objections have no merit. First, the

government was under no obligation to leave its original plea

offer open. At the sentencing hearing, Hernández's counsel

conceded that he had never accepted the initial plea offer,

instead hoping for success on a motion to dismiss. He further

conceded that "while we were waiting for disposition of those

motions . . . at that point, between all that, the government

withdrew." It is axiomatic that a prosecutor may withdraw a

plea offer before a defendant accepts it. See United States v.

Papaleo, 853 F.2d 16, 19-20 (1st Cir. 1988); see also Mabry v.

Johnson, 467 U.S. 504, 507 (1984).

Given that the government was entitled to withdraw the

initial plea offer, the question becomes whether the government

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could offer a new "package deal" plea bargain that would be

available to Hernández only if his two co-defendants also gave

up their right to a jury trial. Assuming that a "package deal"

offer was made2, it would not violate Hernández's constitutional

rights. Although we have expressed concerns with package deal

plea agreements, those concerns have no application here. The

difficulty with "package deal" plea offers is not the fear that

a defendant, like Hernández, will be "forced" to go to trial.

Rather, it is the opposite fear that the defendant will

involuntarily waive his right to a jury trial because his

codefendants will coerce him to accept the plea agreement. See

United States v. Martínez-Molina, 64 F.3d 719, 732 (1st Cir.

1995). We have held that "[p]ackage plea deals therefore impose

special obligations: the prosecutor must alert the district

court to the fact that codefendants are entering a package deal,

and the district court must carefully ascertain the

2
While the record is not entirely clear, it suggests that
the government did offer Hernández a "package deal." In response
to Hernández's motion to compel the government to accept its
original plea offer, the government stated that "[Hernández's]
[c]ounsel was advised in no uncertain terms that . . . trial
preparation in this case would be the same against one or
against any of the three co-defendants." Moreover, when
Hernández informed the trial court that the government had
offered a "package deal" arrangement, the trial court seems to
have accepted this characterization in deciding that such an
arrangement was unproblematic, and the government did nothing to
challenge this characterization.

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voluntariness of each defendant's plea." Id. at 733 (internal

citations omitted) (vacating package deal guilty plea when

district court did not determine if it was voluntary); see also

United States v. Daniels, 821 F.2d 76, 78-79 (1st Cir. 1987)

(vacating package deal guilty plea when government did not

inform trial court about nature of agreement).

The "voluntariness" concern that the defendant may have

been coerced into giving up his right to go to trial obviously

does not apply when the defendant does go to trial. It is

difficult, then, to understand the constitutional right at stake

here. While the "package deal" did limit Hernández's ability to

obtain a plea bargain (since the other defendants would also be

required to plead guilty), the fact remains that "there is no

constitutional right to plea bargain; the prosecutor need not do

so if he prefers to go to trial. It is a novel argument that

constitutional rights are infringed by trying the defendant

rather than accepting his plea of guilty." Weatherford v.

Bursey, 429 U.S. 545, 561 (1977); see also United States v.

Wheat, 813 F.2d 1399, 1405 (9th Cir. 1987) (rejecting

defendant's claim that package deal plea was unconstitutional

because it "forced" him to go to trial).

B. Upward Adjustment for Supervisor / Manager Role

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 Section 3B1.1(b) of the United States Sentencing

Guidelines calls for a three point increase to the base offense

level "[i]f the defendant was a manager or supervisor (but not

an organizer or leader) and the criminal activity involved five

or more participants or was otherwise extensive." U.S.S.G. §

3B1.1(b); see also United States v. Joyce, 70 F.3d 679, 682 (1st

Cir. 1995). Hernández claims that the district court erred in

ordering a two level upward adjustment pursuant to §3B1.1(b)

because he was not a "manager or supervisor." Since the

determination of whether a defendant played this aggravated role

is fact intensive, we will reverse a trial court's determination

only if it is clearly erroneous. See United States v. Shrader,

56 F.3d 288, 293 (1st Cir. 1995); United States v. Morillo, 8

F.3d 864, 871 (1st Cir. 1993).

As the district court noted at the sentencing hearing,

Massó testified that Hernández was second in command at the drug

point. Moreover, Hernández played a leadership role in

arranging with Massó to use her apartment for drug packaging.

Thus, there was sufficient evidence for the district court to

conclude that the "defendant, in committing the crime, exercised

control over, or was otherwise responsible for overseeing the

activities of, at least one other person." United States v.

Cali, 87 F.3d 571, 578 (1st Cir. 1996)(quoting United States v.

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Savoie, 985 F.2d 612, 616 (1st Cir. 1993)). As such, the

imposition of supervisory liability under § 3B1.1(b) was not

clearly erroneous.

There is one other issue related to the § 3B1.1(b)

determination. Although the court found that § 3B1.1(b)

applied, it decided to "give [Hernández] a break on this one"

and increase the offense by only two levels rather than the

three called for by the guideline. This was error. As we noted

in United States v. Rostoff, 53 F.3d 398, 412-14 (1st Cir.

1995), § 3 B1.1 sets forth a precise adjustment scheme 3 that

cannot be modified by the district court. The Sentencing

Commission did not provide for a partial upward adjustment under

§ 3B1.1, in contrast to other provisions where the Commission

authorized the sentencing judge to select an intermediate

adjustment. See, e.g., U.S.S.G. § 2A2.2(b)(3)(D), (E)

(intermediate adjustment allowed for injuries considered to be

"between" specified categories of injuries); § 3B1.2

(intermediate adjustment allowed for mitigating role "falling

3
If a crime involves "five or more participants or was
otherwise extensive," the Guidelines provide for a four level
enhancement for an "organizer or leader," U.S.S.G. § 3B1.1(a),
and three levels for a "manager or supervisor," U.S.S.G §
3B1.1(b). For criminal activity on a smaller scale, the
Guidelines provide for a two level upward adjustment for all
four roles--organizers, leaders, managers or supervisors. See
U.S.S.G. § 3B1.1(c).

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between" minimal and minor participation). Therefore, a court

may not "forgo the three-level increase called for by U.S.S.G.

§ 3B1.1(b) and instead impose a two-level increase" when it

finds mitigating circumstances. United States v. Cotto, 979

F.2d 921, 922 (2d Cir. 1992); see also United States v. Kirkeby,

11 F.3d 777, 778-79 (8th Cir. 1993) ("A trial court's only

options in cases involving a criminal activity with five or more

participants are, therefore, a four-level enhancement under §

3B1.1(a), a three-level enhancement under § 3B1.1(b), or no

enhancement at all . . . .").

Although the district court erred in adjusting

Hernández's offense by two levels rather than three, the

government did not cross-appeal. We therefore deem the issue

waived and affirm the sentence. See generally United States v.

Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

C. Limits on Hernández's Cross-Examination of Tirado

Hernández objects that the district court improperly

limited his cross-examination of José Tirado, a Puerto Rico

Police officer working (at the time of the conspiracy) for the

Drugs and Narcotics Division in the Guayama area. Agent Tirado

testified that acting on a tip from Massó, he obtained a warrant

and entered her apartment with Guayama officers Laboy Rólon and

Juan Rodríguez. Tirado stated that he found Hernández and two

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of his co-conspirators packaging a white powder, which field

tests indicated was cocaine. The drugs were seized and stored

in Rodriguez's locker.

Hernández wanted to cross-examine Tirado about

allegations that Rodríguez and other Guayama area officers were

corrupt. The district court ruled that while questions on the

chain of custody of the drugs would be allowed, "you cannot

benefit from somebody else's corruption, and it is immaterial to

this case." The court reasoned that the corruption was

"immaterial" because Tirado himself had never been accused of

corruption and because the corruption of other officers at the

local level did not implicate the federal prosecution.

The Confrontation Clause of the Sixth Amendment secures

a right to cross-examination in order to test "the believability

of a witness and the truth of his testimony." United States v.

Carty, 993 F.2d 1005, 1009 (1st Cir. 1993). The right to

cross-examine, however, is not unlimited. When a witness's

credibility is at issue, the trial court may limit

cross-examination as long as the court allows "sufficient leeway

to establish a reasonably complete picture of the witness'

veracity, bias, and motivation." United States v.

Laboy-Delgado, 84 F.3d 22, 28 (1st Cir. 1996) (internal

quotation marks omitted). "Confrontation clause challenges are

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reviewed de novo to determine whether defense counsel was

afforded a reasonable opportunity to impeach adverse witnesses;

once that threshold is reached, the trial court's restrictions

on the extent and manner of cross-examination are reviewed only

for abuse of discretion." United States v. Balsam, 203 F.3d 72,

87 (1st Cir. 2000) (citing United States v. Gomes, 177 F.3d 76,

80 (1st Cir. 1999)).

The district court's unwillingness to allow Hernández

to question Tirado about the corruption of other police officers

did not prevent the jury from obtaining "a reasonably complete

picture of the witness' veracity, bias, and motivation."

Laboy-Delgado, 84 F.3d at 28 (emphasis added). While a

magistrate judge's pre-trial report adopted by the district

court contained evidence that some police officers (including

Rodríguez) had behaved corruptly in other drug cases, there was

no allegation that Tirado was himself corrupt. Indeed, Tirado

provided the United States with information that helped

implicate other corrupt officers. Thus, any testimony tending

to show that these other officers were dishonest would not

implicate Tirado's veracity, bias, and motivation. More

concretely, cross-examination that attacked Rodríguez's

integrity would do nothing to cast doubt on Tirado's claims that

(1) he personally saw Hernández packaging a white powder, (2) he

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personally observed a field test indicating that the white

powder was cocaine, and (3) he recognized the drugs from the

laboratory as those seized from Hernández.

Moreover, the district court did not completely bar

Hernández from questioning Tirado about Rodríguez. Rather, the

court allowed extensive questioning as to how Rodríguez handled

the evidence in this case, including the unusually lengthy

storage in Rodríguez's locker and the miscounting of the bags of

drugs. The district court "retains wide latitude to impose

reasonable limits" on cross-examination in order to avoid

confusion of the issues or extended discussion of marginally

relevant material. United States v. Twomey, 806 F.2d 1136, 1139

(1st Cir. 1986). Since Hernández was unable to offer any

evidence that Rodríguez corruptly handled the case against

Hernández, it was not unreasonable for the court to limit

Hernández to questioning Tirado about these concrete factors

relating to storage and quantification rather than allowing a

broad inquiry into the corruption of third party police officers

who were not appearing as witnesses.

III. González

A. Sufficiency of Evidence

González was convicted of conspiracy to distribute

controlled substances, 21 U.S.C. §§ 841(a)(1) & 846, and of

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aiding and abetting the distribution of controlled substances

within one thousand feet of a school, 21 U.S.C. §§ 841(a)(1) &

860 and 18 U.S.C. § 2. The evidence tying him to the drug

operation came primarily from Massó, a paid government

informant. González does not argue that the evidence, taken as

a whole, was insufficient. Rather, González claims that "[t]he

evidence, excluding Ramonita Massó, is legally insufficient to

support appellant's conviction." (emphasis added). We reject

González's sufficiency challenge. His premise that Massó's

testimony must be disregarded as "not trustworthy" because of

her informant status is unsupportable.

It is well-established that "the testimony of

interested informants is not so inherently unreliable that it

must be excluded." United States v. Cresta, 825 F.2d 538, 546

(1st Cir. 1987). A conviction may be based solely on the

uncorroborated testimony of a confidential informant "so long as

the testimony is not incredible or insubstantial on its face."

United States v. Ciocca, 106 F.3d 1079, 1084 (1st Cir. 1997)

(quoting United States v. Andújar, 49 F.3d 16, 21 (1st Cir.

1995)). While the credibility of an interested informant can be

challenged, the challenge should ordinarily be directed to the

jury, not the appellate court. Thus, when an informant is paid

a contingent fee, "the jury must be informed of the exact nature

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of the contingency agreement; the defense counsel must be

permitted to cross-examine the witness about the agreement; and

the jury must be specifically instructed to weigh the witness'

testimony with care." Cresta, 825 F.2d at 546; see also United

States v. Fernández, 145 F.3d 59, 62 (1st Cir. 1998) (plain

error review when defendant does not request the "special care"

instruction). When these "established safeguards," id., are

met, we will not disturb a conviction based on the testimony of

an interested informant.

Massó's testimony was certainly not "incredible or

insubstantial on its face." Ciocca, 106 F.3d at 1084. She

provided detailed descriptions of González's participation in

the drug distribution operation. González was allowed to--and

did--vigorously cross-examine Massó, suggesting that her

testimony was untruthful. Massó admitted that she had started

working at the drug point before she made a decision to serve as

an informant. González also brought out inconsistencies between

Massó's trial testimony--where she identified González as a

"triggerman" and recalled an incident when he delivered drugs to

the distribution point--and her investigative interviews with

Agent Tirado and Agent Anderson. During the closing, González

argued that Massó was now lying about González's role due to

compensation she had acknowledged on direct: $10,000 for

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expenses, $10,000 for her availability, and the promise of a

"bonus" upon completion of the trial, regardless of its result.

Finally, the trial court instructed the jury to weigh Massó's

testimony with care.4 Despite this admonition, the jury rejected

González's defense that Massó was lying and voted to convict.

We have no reason to disturb the verdict on sufficiency grounds.

B. The Traffic Stop

González argues that the district court erred in

failing to strike Agent Tirado's testimony that he saw González

with drug paraphernalia as he left the distribution point.

Tirado testified that on March 4, 1994, he stopped González for

traffic violations as he left the housing project on his

motorcycle. A consensual search of González's sports bag

revealed a scale, a sieve, plastic containers, and pieces of

aluminum--items Tirado recognized as frequently used to process

4In addition to receiving a general instruction on witness
credibility, the jury was advised that it should consider
whether Massó's pre-trial statements were consistent with her
testimony at trial and that the testimony of "an informer for
pay" must "always be examined and weighed with greater care and
caution than the testimony of an ordinary witness." We assume
for the sake of argument that González properly requested these
instructions, though the record is unclear. See Fernández, 145
F.3d at 62 (plain error review if "special care" instructions
not requested).

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controlled substances. When Tirado told the other officers,

"Look what this guy has in here," González began to run.

After cross-examination of Agent Tirado was complete,

González moved to strike the testimony concerning the traffic

stop on the grounds that the evidence was irrelevant to the

conspiracy charges and, even if relevant, unduly prejudicial

under Fed. R. Evid. 403. The trial court denied the motion to

strike, stating, inter alia, that the evidence was relevant (and

more probative than prejudicial) because "he was at the drug

point within the time frame of the conspiracy and carrying

paraphernalia is consistent with drug trafficking." We review

evidentiary rulings for abuse of discretion. United States v.

Rodríguez, 162 F.3d 135, 142 (1st Cir. 1998).

The evidence was plainly admissible as relevant

evidence of the conspiracy: combined with the testimony of

Massó, it suggested that González was a member of the drug ring

at the housing project. Likewise, "it is only unfair prejudice,

not prejudice per se, against which Rule 403 guards." United

States v. Rivera-Gómez, 67 F.3d 993, 997 (1st Cir. 1995).

"Unfairly prejudicial evidence is evidence having some quality

that moves the jury to attribute to it excessive probative

value. It is evidence that 'triggers [the] mainsprings of human

action [in such a way as to] cause a jury to base its decision

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on something other than the established proposition in the

case.'" United States v. Currier, 836 F.2d 11, 18 (1st Cir.

1987) (quoting 1 Weinstein's Evidence § 403[03], 36-39 (1986)).

The items González was carrying did not create a danger of such

unfair prejudice. Rather, a reasonable jury could consider the

testimony concerning these items as circumstantial evidence of

González's involvement in the conspiracy.

IV. Hernández and González

Hernández and González argue that the district court

erred in admitting the testimony of Puerto Rico Police Officer

Gregorio Durán regarding investigations and surveillance at the

Luis Palés Matos housing project. Durán testified that while

investigating drug distribution at the housing project he

observed Hernández, González, and Bonano acting as Pichi's

bodyguards. Cross-examination, however, revealed that Durán was

unsure precisely when he saw the co-defendants. Since some of

Durán's observations were made before the charged conspiracy, he

could not be certain that he had seen the defendants within the

time frame of the conspiracy. Surveillance reports that could

have been used to clarify when Durán saw the defendants, or to

impeach his testimony if the defendants were not mentioned in

them, could not be obtained because they were stored in a Puerto

Rico facility that OSHA had declared highly contaminated.

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 In response, Hernández and González requested a

mistrial. Although arguing that no mistrial was necessary, the

government suggested to the district court that it might strike

Agent Durán's testimony and issue a curative instruction. The

trial court reasoned that there was no basis for a mistrial--or

even for striking the testimony--because 1) the reports were

unavailable to the government, 2) there had been no misconduct,

and 3) the defendants "have had the chance to cross-examine this

witness and really attack his credibility on the grounds that he

did not observe the matters within the time frame."

Nonetheless, the court agreed to strike the testimony and issue

the cautionary instruction because "the Government wants to do

that." On appeal, González and Hernández claim that Agent

Durán's testimony impermissibly bolstered Massó's testimony.

Given that Durán's testimony was struck, the only possible legal

argument is that the remedy of striking the testimony and

issuing a cautionary instruction was insufficient to cure the

harms caused by the allegedly inadmissible testimony and that

the mistrial the defendants sought should have been granted.

We find no error in the trial court's denial of a

mistrial, much less the manifest abuse of discretion required

for reversal. See United States v. Rullán-Rivera, 60 F.3d 16,

18 (1st Cir. 1995) ("Mistrial is a last resort, to be employed

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only if the demonstrated harm can be cured by no less drastic

means, such as a contemporaneous jury instruction."). Even

assuming that Agent Durán's testimony was inadmissible (an

assumption we make solely for the sake of argument), the

district court's response--striking the testimony and issuing a

curative instruction--was certainly adequate. The court told

the jury:

Now, the testimony of Agent Gregorio
Durán Malavé concerning his observations
that he saw the three defendants providing
security service, body guarding 'Pichi',
well I am ordering that testimony to be
stricken from the record, and I am
instructing you to erase it from your mind
entirely, the way I told you, the way you
swore to obey my instructions and follow the
law. So again, I repeat, disregard that
testimony , that portion of the testimony,
that portion, entirely from your minds.

We presume that juries follow instructions. See United

States v. Woodward, 149 F.3d 46, 73 (1st Cir. 1998). While this

presumption may be rebutted "on a sufficient showing that the

offending testimony reasonably could not have been ignored and

that serious prejudice likely resulted," Rullán-Rivera, 60 F.3d

at 18, no such showing has been made here. Indeed, Agent

Durán's stricken testimony also implicated co-defendant Bonano

as a bodyguard for Pichi. The jury, however, acquitted Bonano,

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indicating that they were not unduly influenced by the

testimony.

V. Conclusion

For the reasons stated herein, we affirm the

convictions and sentences.

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